JUDGMENT :

JYOTSNA REWAL DUA, J.

1. Petitioner claims that even though he has availed the benefit of age relaxation and fee concession available to the candidates belonging to Scheduled Tribes category, yet having scored more marks than the last candidate in the General category, he is required to be moved to the General category. Challenge has also been laid to the circular/instruction dated 12.12.2011 issued by the State Government, which provide for migration of only such SC/ST/OBC candidates to the general category merit list who are selected on the same standard as applied to general category candidates.

2. Bare minimum factual position is that :-

2(i) A recruitment notice was issued by respondents No.1 to 5 on 5.3.2015 for filling-up various posts of Constables in different districts of the State. 60 posts of Constables (Male) were allotted to District Shimla.

2(ii) Age limit prescribed for recruitment to the post of Constable was 18-23 years for general category, whereas for candidates belonging to reserved category of SC/ST/OBC, it was 18 to 25 years. Petitioner had admittedly crossed age limit of 23 years when he applied under the advertisement. Petitioner belonged to Scheduled Tribes Category (UR) and, therefore, was eligible to apply only in view of the age concession admissible to ST category. He had applied accordingly for the posts in District Shimla.

2(iii) Petitioner obtained 65 marks in the written examination and in view of his height was entitled to three marks. Petitioner thus scored 68 marks (i.e. 65 marks for written+ 3 marks for height). He was not selected within his category as no post for ST (UR) was available. Petitioner’s candidature was not considered against general category posts as he did not fulfill the standards prescribed for general category (UR) candidates. Accordingly he was not called for interview.

2(iv) Aggrieved, petitioner has preferred instant petition primarily on the ground that he having scored more marks than the last candidate called for interview in general category (61 marks) was required to be moved from ST category to the general category. Additionally, State Government instructions dated 12.12.2011 on the subject have also been assailed.

3. Contentions.

3(i) Learned Counsel for the petitioner contended that concession in age and fee availed by the petitioner as a Scheduled Tribe candidate would not debar his migration to general category merit list, as on merit the petitioner had scored more marks than the minimum cut off in the general category. In support of this contention, learned Counsel placed heavy reliance upon following paras of the judgment in (2010) 3 SCC 119, titled Jitendra Kumar Singh and another versus State of Uttar Pradesh and others:-

“49. It is permissible for the State in view of Articles 14, 15, 16 and 38 of the Constitution of India to make suitable provisions in law to eradicate the disadvantages of candidates belonging to socially and educationally backward classes. Reservations are a mode to achieve the equality of opportunity guaranteed under Article 16 (1) of the Constitution of India. Concessions and relaxations in fee or age provided to the reserved category candidates to enable them to compete and seek benefit of reservation, is merely an aid to reservation. The concessions and relaxations place the candidates at par with General Category candidates. It is only thereafter the merit of the candidates is to be determined without any further concessions in favour of the reserved category candidates.

71. We are of the considered opinion that the concessions falling within Section 8 of the Act of 1994 cannot be said to be relaxations in the standard prescribed for qualifying in the written examination. Section 8 clearly provides that the State Government may provide for concessions in respect of fees in the competitive examination or interview and relaxation in upper age limit.

75. In our opinion, the relaxation in age does not in any manner upset the "level p